Thomopoulos v Faulks - [2006] VSC 262

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5738 of 2004

IRENE THOMOPOULOS	Plaintiff
v
MATTHEW JOHN FAULKS	Defendant
EMMA FAULKS	Secondnamed Defendant

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATES OF HEARING:	17-19 May 2006
DATE OF JUDGMENT:	19 July 2006
CASE MAY BE CITED AS:	Thomopoulos v Faulks & Anor
MEDIUM NEUTRAL CITATION:	[2006] VSC 262

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Easements – Lost modern grant – Principles – Requirement for uninterrupted usage of land as of right for 20 years – Laneway between two residential properties in suburban Melbourne – Split between titles – Used from 1974 by registered proprietors of one property to gain access by car to rear garage – Whether usage interrupted by objections and litigation in 1982 – Whether sufficient usage after 1982 – Whether any usage after 1982 open and without force – Whether owner of servient tenement acquiesced – Claim unsuccessful.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A A Nolan SC with Mr N P Jones	McKean & Park
For the Defendants	Mr P H Wallis	P.R. Rule

HIS HONOUR:

The parties and the claim

The plaintiff is the registered proprietor of the residential property known as 203 Albert Street, Port Melbourne. She has lived there since 1971. She claims an easement of way under the doctrine of lost modern grant over a strip of land which runs between her property and the residential property next door at 201 Albert Street. The strip is approximately 19 metres long and approximately 2.4 metres wide. About one third of its length lies within the title boundaries of 203 Albert Street and about two thirds within those of 201 Albert Street. If unobstructed, it would be wide enough to permit the passage of a motor vehicle down to the gate and garage located at the rear of the plaintiff’s property. There is no other vehicular access into the property. Parking is very tight in the street. Property values in the vicinity have increased in recent years. The right claimed would be of significant value to the plaintiff.

The defendants are the occupants and registered proprietors of 201 Albert Street. They acquired the house in 2002. In 2004 they caused building works, including drainpipes, decking and a boundary fence, to be carried out on their side of the strip of land. Those works now block any motor vehicle from passing along the strip.

The plaintiff seeks a declaration that there is an easement in favour of her property permitting pedestrian and vehicular passage along the entire length of the strip. She also seeks consequential injunctions requiring the defendants to remove the built items in order to re-open the claimed right of way. The defendants deny that the claimed easement exists.

The legal principles

The relevant legal principles were not the subject of any significant dispute between the parties. Both parties were content to rely on the following exposition of the principles by Hedigan J in Sunshine Retail Investments Pty Ltd v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thomopoulos v Faulks

Details

AGLC: Thomopoulos v Faulks [2006] VSC 262
Case: [2006] VSC 262
Decision Date: 19 July 2006

CaseChat Overview and Summary

Thomopoulos v Faulks is a decision of the Supreme Court of Victoria concerning the lost modern grant of easements, specifically focusing on the laneway between two residential properties in suburban Melbourne. The plaintiff, Mr Thomopoulos, sought to establish an easement over a laneway that provided vehicular access to the rear garage of his property, which had been used since 1974. The defendant, Mr Faulks, owned the servient tenement and contested the easement, arguing that it had not been established by uninterrupted use for the required 20-year period.

The legal issues before the court involved determining whether the use of the laneway had been uninterrupted and whether it had been open, notorious, and without force. Additionally, the court needed to decide if Mr Faulks had acquiesced to the easement, and whether the usage after 1982 met the statutory requirements for a lost modern grant. The court examined the historical use of the laneway, the nature of objections and litigation in 1982, and the subsequent use of the laneway by Mr Thomopoulos.

In its decision, the Supreme Court held that the use of the laneway had been interrupted by objections and litigation in 1982, and therefore did not meet the requirement for uninterrupted usage of land as of right for 20 years. The court further found that the usage after 1982 was not sufficient to establish an easement by lost modern grant, as it was not open, notorious, and without force. Furthermore, the court determined that Mr Faulks had not acquiesced to the easement, and therefore the claim for the easement was unsuccessful. The court's reasoning was based on the evidence presented and the applicable legal principles concerning lost modern grants and easements.

The final orders of the court were that the plaintiff's claim for an easement over the laneway was dismissed, and the defendant was granted relief from any potential easement claim. This decision highlights the importance of uninterrupted and evident use of a laneway for the required statutory period in order to establish an easement by lost modern grant, and the need for the use to be open, notorious, and without force.

Orders